Citation Nr: 0723351
Decision Date: 07/30/07 Archive Date: 08/14/07
DOCKET NO. 05-25 319 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
Entitlement to an increased disability rating for service-
connected posttraumatic stress disorder (PTSD), currently
rated 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Anthony Yim, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1963 to June
1969.
This matter comes before the Board of Veteran's Appeals (BVA
or Board) on appeal from a February 2004 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in St. Louis, Missouri. That decision granted service
connection for PTSD and assigned a "staged" rating for that
disorder, i.e., a 10 percent disability rating effective
July 25, 2001, and a 30 percent disability rating effective
January 29, 2004. See Fenderson v. West, 12 Vet. App. 119,
126 (1999) (noting that an initial rating is based on
evidence contemporaneous with the claim and initial rating
decision; if later evidence indicates a change in degree of
disability, "staged" ratings may be assigned for separate
periods of time based on facts found). Fenderson, 12 Vet.
App. at 126. In his notice of disagreement, the veteran
specifically appealed only the assignment of the 30 percent
disability rating to the Board. Cf. AB v. Brown, 6 Vet. App.
35, 39 (1993) (indicating that where there is a clearly
expressed intent to limit the appeal to a specific disability
rating, the Board's jurisdiction on appeal is limited to
consideration of that disability rating). Thus, the case has
been referred to the Board for appellate review of the
currently assigned 30 percent rating.
The veteran submitted additional evidence dated in October
2005 from a VA clinical psychologist and waived his right to
have the additional evidence referred to the agency of
original jurisdiction in the May 2007 Appellant's Brief.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. Service-connected PTSD is currently manifested by
occupational and social impairment with reduced reliability
and productivity due to such symptoms as impairment of
memory, disturbances of motivation and mood, and difficulty
in establishing and maintaining effective work and social
relationships.
CONCLUSIONS OF LAW
The criteria for a 50 percent disability rating, but not
higher, for service-connected PTSD have been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102,
4.1-4.14, 4.130, Diagnostic Code 9411 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Upon receipt of a substantially complete application for
benefits, VA must notify the claimant what information or
evidence is needed in order to substantiate the claim and it
must assist the claimant by making reasonable efforts to get
the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West
2002); 38 C.F.R. § 3.159(b) (2006); see Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The notice required
must be provided to the claimant before the initial
unfavorable decision on a claim for VA benefits, and it must
(1) inform the claimant about the information and evidence
not of record that is necessary to substantiate the claim;
(2) inform the claimant about the information and evidence
that VA will seek to provide; (3) inform the claimant about
the information and evidence the claimant is expected to
provide; and (4) request or tell the claimant to provide any
evidence in the claimant's possession that pertains to the
claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R.
§ 3.159(b)(1) (2006); Pelegrini v. Principi, 18 Vet. App.
112, 120 (2004).
With regard to claims for service connection for a
disability, the notice requirements of 38 U.S.C.A. § 5103(a)
(West 2002) and 38 C.F.R. § 3.159(b) apply to all five
elements of the claim: 1) veteran status; 2) existence of a
disability; (3) a connection between the veteran's service
and the disability; 4) degree of disability; and 5) effective
date of the disability. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006). Thus, upon receipt of an application
for a service-connection claim, VA must review the
information and the evidence presented with the claim and
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application
including notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. Id.
In this case, the RO provided the appellant with notice
regarding the evidence needed to substantiate his claim for
service connection for PTSD in November 2002, prior to the
initial rating decision granting that claim in February 2004.
However, the notice sent in November 2002 did not
specifically inform the veteran that a disability rating and
an effective date for the award of benefits would be assigned
if service connection is awarded because in 2002, judicial
interpretation of the requirements of 38 U.S.C.A. § 5103(a)
(West 2002) and 38 C.F.R. § 3.159(b) had not yet made clear
that notice applied to all five elements of a service
connection claim. Nevertheless, for the reasons which
follow, the Board concludes that VA cured any defect in the
initial notice on these latter two elements before the case
was transferred to the Board on appeal, and no prejudice to
the appellant will result in proceeding with the issuance of
a final decision. Prickett v. Nicholson, 20 Vet. App. 370,
377-78 (2006) (VA cured failure to afford statutory notice to
claimant prior to initial rating decision by issuing
notification letter after decision and readjudicating claim
and notifying claimant of such readjudication in the
statement of the case).
Concerning this, the Board notes that, when VA grants service
connection for a disability, it assigns a disability rating
for that disability and an effective date for service
connection and the initial rating in the rating decision
granting service connection. VA then sends the veteran a
copy of the rating decision with a notification letter
informing him of its decision and his right to appeal. In
this case, VA assigned a "staged" rating for PTSD and
notified the veteran in the notification letter and rating
decision what the specific rating criteria in the VA Schedule
for Rating Disabilities were for rating mental disorders and
what evidence in the case was relied on in assigned the
specific ratings. See Fenderson, 12 Vet. App. at 126. In
addition, VA explained to the veteran that the dates assigned
for the staged ratings were based on the date of receipt of
his claim for service connection, in the case of the initial
10 percent rating, and the date of a VA examination which
showed an increase in disability to 30 percent.
Thereafter, the appellant filed a notice of disagreement
limiting his appeal to an increased disability rating for
PTSD, currently rated as 30 percent disabling. He contended
that VA treatment records, if obtained, would show that his
disability was of greater severity than indicated by the
rating criteria for the 30 percent evaluation. The RO
obtained additional treatment records, readjudicated the
veteran's claim in a June 2005 statement of the case (SOC)
providing reasons for its decision n which included a
discussion of the evidence on which the decision was based,
and again informed the veteran of the specific rating
criteria in the VA Schedule for Rating Disabilities which are
used to evaluate mental disorders. Thus, in this case, the
Board concludes that any defect in the November 2002
notification letter with regard to assignment of a disability
rating and effective date were cured by subsequent notice to
the veteran and readjudication of his claim in the rating
decision and SOC. Prickett, 20 Vet. App. at 377-78.
Moreover, with respect to the content of the notice, the June
2005 statement of the case (SOC) notified the veteran of the
reasons for the denial of his request for increased rating
and, in so doing, informed him of the evidence that was
needed to substantiate his claim. As noted, the SOC provided
the veteran with the specific schedular criteria used to
evaluate his service-connected PTSD, namely Diagnostic Code
9411.
In addition, the RO notified the veteran in the November 2004
notice letter about the information and evidence that VA
would seek to provide. In particular, the letter indicated
that reasonable efforts would be made to help him obtain
evidence necessary to support his claim and that VA was
requesting all records held by Federal agencies, including
service medical records, military records, and VA medical
records. The veteran was also informed that a medical
examination would be provided or that a medical opinion would
be obtained if it was determined that such evidence was
necessary to make a decision on his claim.
The RO also informed the veteran about the information and
evidence that he was expected to provide. Specifically, the
November 2002 letter notified the veteran that he must
provide enough information about his records so that they
could be requested from the agency or person that has them.
In addition, the letter stated that it was the veteran's
responsibility to ensure that VA received all requested
records that are not in the possession of a Federal
department or agency.
All the law requires is that the duty to notify is satisfied
and that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (2006) (harmless error). In addition to
being notified in the rating decision and SOC of the rating
criteria pertaining to PTSD and informed of how the effective
date for the 30 percent rating was determined, the veteran
also was given ample opportunity to provide additional
evidence or argument, and he did so when he notified the RO
in his NOD to obtain additional VA treatment records. The
veteran and his representative have not disagreed with the
assigned effective date for the 30 percent rating, but only
with the rating percentage assigned. As noted above, because
each of the four notice requirements has been fully satisfied
in this case, any error in not providing a single notice to
the appellant covering all the requirements is harmless
error. See Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May
16, 2007); Simmons v. Nicholson, No. 06-7092 (Fed. Cir. May
16, 2007).
In addition, the duty to assist the veteran has been met in
this case. Although complete service medical records were
not obtained in this case, the February 2004 rating decision
granted service connection for PTSD, and so regardless of
whether the requirements of the law have been met in this
case, no harm or prejudice to the appellant has resulted from
the absence of the veteran's service medical records. See,
e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC
16-92. Moreover, the issue on appeal concerns the rating
assigned for PTSD, and evidence relevant to that issue is
current evidence showing the present level of disability, not
evidence dated in the past. Francisco v. Brown, 7 Vet. App.
55, 58 (1994). The RO has assisted the veteran in obtaining
all relevant treatment records pertaining to the current
degree of severity of the service-connected PTSD. Thus, the
Board finds no prejudice to the appellant in proceeding with
the issuance of a final decision in this case as the a
defect, if any, in providing notice and assistance to the
veteran was at worst harmless error in that it did not affect
the essential fairness of the adjudication. Mayfield v.
Nicholson, 19 Vet. App. 103, 115 (2005).
Law and Analysis
Disability ratings are determined by applying the criteria
set forth in the VA Schedule for Rating Disabilities, found
in 38 C.F.R., Part 4. The rating schedule is primarily a
guide in the evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service. The ratings are intended to
compensate, as far as can practicably be determined, the
average impairment of earning capacity resulting from such
diseases and injuries and their residual conditions in
civilian occupations. 38 U.S.C.A. § 1155 (West 2002); 38
C.F.R. § 4.1 (2006). Where there is a question as to which
of two evaluations shall be applied, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria for that rating. 38 C.F.R. § 4.7
(2006).
In considering the severity of a disability, it is essential
to trace the medical history of the veteran. 38 C.F.R. §§
4.1, 4.2, 4.41 (2006). Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2 (2006);
Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the
regulations require review of the recorded history of a
disability by the adjudicator to ensure a more accurate
evaluation, the regulations do not give past medical reports
precedence over the current medical findings. Where an
increase in the disability rating is at issue, the present
level of the veteran's disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, there is a distinction between an appeal of an
original or initial rating and a claim for an increased
rating, and this distinction is important with regard to
determining the evidence that can be used to decide whether
the original rating on appeal was erroneous. Fenderson v.
West, 12 Vet. App. 119, 126 (1999). For example, the rule
articulated in Francisco v. Brown--that the present level of
the veteran's disability is the primary concern in an claim
for an increased rating and that past medical reports should
not be given precedence over current medical findings--does
not apply to the assignment of an initial rating for a
disability when service connection is awarded for that
disability. Fenderson, 12 Vet. App at 126.
Instead, where a veteran appeals the initial rating assigned
for a disability, evidence contemporaneous with the claim and
with the initial rating decision granting service connection
would be most probative of the degree of disability existing
at the time that the initial rating was assigned and should
be the evidence "used to decide whether an original rating
on appeal was erroneous..." Fenderson, 12 Vet. App. at 126.
If later evidence indicates that the degree of disability
increased or decreased following the assignment of the
initial rating, "staged" ratings may be assigned for
separate periods of time based on facts found. Id.
In this case, the RO assigned a staged rating for PTSD, and
the veteran has appealed the currently assigned 30 percent
disability evaluation. PTSD is evaluated pursuant to 38
C.F.R. § 4.130, Diagnostic Code 9411 (2006). Under that
diagnostic code, a 30 percent evaluation is assigned when
there is occupational and social impairment with occasional
decrease in work efficiency and intermittent periods of
inability to perform occupational tasks (although generally
functioning satisfactorily, with routine behavior, self-care,
and conversation normal), due to such symptoms as: depressed
mood, anxiety, suspiciousness, panic attacks (weekly or less
often), chronic sleep impairment, mild memory loss (such as
forgetting names, directions, recent events).
A 50 percent evaluation is assigned when there is
occupational and social impairment with reduced reliability
and productivity due to such symptoms as: flattened affect;
circumstantial, circumlocutory, or stereo-typed speech; panic
attacks more than once a week; difficulty in understanding
complex commands; impairment of short- and long-term memory
(e.g., retention of only highly learned material, forgetting
to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social
relationships.
A 70 percent disability evaluation is assigned for
occupational and social impairment with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately, and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a work-like setting); inability to establish and
maintain effective relationships.
In considering the evidence of record under the applicable
laws and regulations, the Board concludes that the veteran is
entitled to an increased disability rating for his
service-connected PTSD--specifically a 50 percent disability
evaluation. Concerning this, the Board notes that on a
January 2004 VA examination, the examiner noted that the
veteran was neat, clean, and well-groomed. He was oriented
to time, place, person, and was cognizant of the reason for
the examination. He was logical, coherent, and not
circumstantial. He was spontaneous and his voice was well
modulated. He made good eye contact. He was pleasant and
cooperative, open and honest, smiled easily and was able to
appreciate humor. His mood was somewhat deformed, and he
showed increased anxiety and became tearful when talking
Vietnam. His affect matched the content of discussion.
There were no hallucinations, delusions, or psychosis. Some
suicidal thoughts were expressed but no plans or intent.
There were no homicidal thoughts. He showed moderate
depression and anxiety. There was no startle reaction to
ambient noise. Abstraction ability was in the average range,
and judgment was normal. Attention, concentration, and
recent and remote memory were intact. He was able to follow
a simple chain of directions. He had sleep problems and
irritability. The examiner assigned a Global Assessment of
Functioning score of 55.
Since this examination, VA treatment records show the
veteran's continuing problems with sleep disturbance, somber
mood with constricted affect or, more recently, with
appropriate affect; irritability; and confusion/concentration
problems. There was never any suicidal or homicidal
ideation. In November 2004, the veteran reported a recent
visit to an emergency room with what he thought was a panic
attack. In February 2005, the veteran reported having
experienced mood swings, irritability, confusion, and
increased need for isolation. He reported intensifying
distrust and isolation from people at his place of work.
The most recent medical record in the file is a letter dated
in October 2005 from the PTSD clinic where the veteran
receives treatment. A VA clinical psychologist stated that
the veteran continued to suffer from chronic PTSD which
regularly manifested in intrusive re-experiencing in the form
of nightmares and flashbacks. He continued to manifest
irritability and depression and thus usually preferred
isolation which affected his social relationships. At times,
he appeared dissociated with blunted affect. He continued to
suffer from severe hyperarousal symptoms including persistent
sleep disturbance, anxiety and hypervigilance, concentration
and memory impairments, and anger problems. The veteran had
been increasingly relying on isolating to manage his symptoms
and had increasing problems maintaining effective
relationships at work due to his condition.
The veteran had been evaluated in January 2004 as having a
GAF score as 55. A GAF score between 51 and 60 indicates
moderate symptoms (e.g. flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in
social, occupational, or school functioning. See 38 C.F.R.
§§ 4.125, 4.130 (2006) (incorporating the Diagnostic and
Statistical Manual of Mental Disorders, 4th Edition of the
American Psychiatric Association in the rating schedule).
When all of the relevant evidence noted above is considered,
including the degree of functioning as evidenced by the GAF
score, the Board finds that the severity veteran's PTSD more
nearly approximates the criteria for a 50 percent disability
evaluation. 38 C.F.R. § 4.7 (2006). In this regard,
although he has not been shown to have circumstantial speech,
impaired judgment or abstract thinking, the evidence did show
some disturbances of mood and occasional inappropriate
affect, and one reported possible panic attack. Accordingly,
the Board concludes an increased disability rating of 50
percent for PTSD is warranted. The benefit of the doubt is
resolved in the veteran's favor. See 38 U.S.C.A. §§ 1155,
5107 (West 2002 & Supp. 2006); 38 C.F.R. § 4.130, Diagnostic
Codes 9411 (2006).
The Board has also considered whether an evaluation in excess
of 50 percent for PTSD is warranted under 38 C.F.R. § 4.130,
Diagnostic Code 9411. However, the medical evidence of
record does not show a disability picture that more nearly
approximates the criteria required for this rating. 38
C.F.R. § 4.7 (2006). Specifically, the medical evidence does
not show the veteran to have occupational and social
impairment with deficiencies in most areas, such as work,
school, family relations, judgment, thinking, or mood, due to
such symptoms as: suicidal ideation; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control; spatial disorientation; difficulty
in adapting to stressful circumstances (including work or
work-like setting); and inability to establish and maintain
effective relationships.
The January 2004 VA examiner noted that the veteran's speech
was within normal limits and that he was oriented to time,
place, and person. He was neat, clean and well groomed. His
thought process was logical, coherent and not circumstantial.
No hallucinations, delusions, psychosis or organic brain
syndrome was noted. While the veteran had some suicidal
thoughts, he had no plans or intent. No homicidal thoughts
were expressed and described as "pleasant and cooperative"
by the treating examiner. Likewise, the VA treatment
records, dated in 2004-2005, do not show suicidal or
homicidal ideation and the veteran was consistently described
as alert and oriented. The letter of October 2005 does not
contradict these findings. Therefore, the Board concludes
that an increased disability rating in excess of 50 percent
is not warranted.
In reaching both of this decision, the potential application
of various provisions of Title 38 Code of Federal Regulations
have been considered, whether or not they were raised by the
veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In
particular, the Board has considered the provisions of 38
C.F.R. § 3.321(b)(1) (2006). In this case, however, the
veteran's service-connected PTSD has not caused marked
interference with employment beyond that contemplated by the
schedule for rating disabilities, necessitated frequent
periods of hospitalization, or otherwise rendered impractical
the application of the regular schedular standards utilized
to evaluate the severity of his disability. In the absence
of such factors, the Board finds that the requirements for an
extraschedular evaluation for the veteran's service-connected
PTSD under the provisions of 38 C.F.R. § 3.321(b)(1) (2006)
have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996);
Shipwash v. Brown, 8 Vet. App. 218 (1995).
ORDER
An increased disability rating of 50 percent, but not higher,
from January 29, 2004, is granted, subject to the laws and
regulations governing the payment of monetary awards.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs